McDaniel v. Brown, 558 U.S. 120 (2010)

120 OCTOBER TERM, 2009
Syllabus
McDANIEL, WARDEN, et al. v. BROWN
certiorari to the united states court of appeals for
the ninth circuit
No. 08–559. Decided January 11, 2010
Jackson v. Virginia, 443 U. S. 307, 324, entitles a state prisoner to habeas
relief if a federal judge finds that “upon the record evidence adduced at
the trial no rational trier of fact could have found proof of guilt beyond
a reasonable doubt.” A Nevada jury convicted respondent of rape
based on DNA evidence matching his DNA and ample physical and
other evidence of his guilt. After the state courts denied relief on di­
rect appeal and in postconviction proceedings, respondent filed this fed­
eral habeas petition, claiming that the evidence was insufficient to con­
vict him and that the Nevada Supreme Court’s rejection of this claim
was both contrary to, and an unreasonable application of, Jackson. Re­
lying on the “Mueller Report” prepared by respondent’s DNA expert
over 11 years after the trial—which suggested that the State’s DNA
expert, Renee Romero, had committed the so-called “prosecutor’s fal­
lacy” by mischaracterizing the probability that someone from the gen­
eral population would share respondent’s DNA, and that she had under­
estimated the likelihood that one of respondent’s brothers would also
match the DNA at the crime scene—the District Court granted relief
on the Jackson claim. The Ninth Circuit affirmed.
Held:
1. Because the trial record includes both the DNA evidence and other
convincing evidence of guilt, the lower federal courts clearly misapplied
Jackson. Pp. 127–134.
(a) The two inaccuracies on which this case turns are Romero’s
commission of the prosecutor’s fallacy and her underestimate of the like­
lihood of a DNA match with one of respondent’s brothers. Pp. 127–130.
(b) The Ninth Circuit’s analysis failed to preserve “the factfinder’s
role as weigher of the evidence” by reviewing “all of the evidence ...
in the light most favorable to the prosecution,” Jackson, supra, at
319, and it further erred in finding that the Nevada Supreme Court’s
resolution of the Jackson claim was objectively unreasonable. A re­
viewing court must consider all of the evidence admitted at trial when
considering a Jackson claim, and ample DNA and non-DNA evidence in
the trial record supported the jury’s guilty verdict under Jackson.
Even assuming that the Court of Appeals could have considered the
Mueller Report in the context of a Jackson claim, the report provided

Cite as: 558 U. S. 120 (2010) 121
Per Curiam
no warrant for entirely excluding the DNA evidence or Romero’s testi­
mony from that court’s consideration. The report did not contest that
the DNA evidence matched respondent, and a rational jury could con­
sider that evidence to be powerful evidence of guilt. Furthermore, the
Ninth Circuit’s discussion of the non-DNA evidence departed from the
deferential review demanded by Jackson and 28 U. S. C. § 2254(d)(1),
which permits a federal habeas court to set aside a state-court decision
only if it is “an unreasonable application of . . . clearly established Fed­
eral law.” While the Ninth Circuit acknowledged that it must review
the evidence in the light most favorable to the prosecution, its recitation
of inconsistencies in the testimony shows it failed to do that. Although
the court’s Jackson analysis relied substantially upon the State’s post-
conviction concession that there was insufficient evidence to convict re­
spondent absent the DNA findings, the concession posited a situation in
which there was no DNA evidence at all, not one in which some testi­
mony regarding such evidence was called into question. Pp. 130–134.
2. Respondent’s claim that the admission of Romero’s inaccurate DNA
testimony denied him a fair trial under Manson v. Brathwaite, 432 U. S.
98, 114, is forfeited because he makes it for the first time in his brief on
the merits in this Court. Pp. 134–136.
525 F. 3d 787, reversed and remanded.
Per Curiam.
In Jackson v. Virginia, 443 U. S. 307 (1979), we held that
a state prisoner is entitled to habeas corpus relief if a federal
judge finds that “upon the record evidence adduced at the
trial no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” Id., at 324. A Nevada jury
convicted respondent of rape; the evidence presented in­
cluded DNA evidence matching respondent’s DNA profile.
Nevertheless, relying upon a report prepared by a DNA ex­
pert over 11 years after the trial, the Federal District Court
applied the Jackson standard and granted the writ. A di­
vided Court of Appeals affirmed. Brown v. Farwell, 525
F. 3d 787 (CA9 2008). We granted certiorari to consider
whether those courts misapplied Jackson. Because the trial
record includes both the DNA evidence and other convincing
evidence of guilt, we conclude that they clearly did.

122 McDANIEL v. BROWN
Per Curiam
I
Around 1 a.m. on January 29, 1994, 9-year-old Jane Doe
was brutally raped in the bedroom of her trailer. Respond­
ent Troy Brown was convicted of the crime. During and
since his trial, respondent has steadfastly maintained his in­
nocence.
1
He was, however, admittedly intoxicated when
the crime occurred, and after he awoke on the following
morning he told a friend “ ‘he wished that he could remember
what did go on or what went on.’ ” App. 309.
Troy and his brother Travis resided near Jane Doe in the
same trailer park. Their brother Trent and his wife Raquel
lived in the park as well, in a trailer across the street from
Jane Doe’s. Both Troy and Trent were acquainted with
Jane Doe’s family; Troy had visited Jane Doe’s trailer several
times. Jane did not know Travis. The evening of the at­
tack, Jane’s mother, Pam, took Jane to Raquel and Trent’s
trailer to babysit while the three adults went out for about
an hour. Raquel and Trent returned at about 7:30 p.m. and
took Jane home at about 9:30 p.m. Pam stayed out and
ended up drinking and playing pool with Troy at a nearby
bar called the Peacock Lounge. Troy knew that Jane and
her 4-year-old sister were home alone because he answered
the phone at the bar when Jane called for her mother earlier
that evening.
Troy consumed at least 10 shots of vodka followed by beer
chasers, and was so drunk that he vomited on himself while
he was walking home after leaving the Peacock at about
12:15 a.m. Jane called her mother to report the rape at ap­
proximately 1 a.m. Although it would have taken a sober
man less than 15 minutes to walk home, Troy did not arrive
at his trailer until about 1:30 a.m. He was wearing dark
jeans, a cowboy hat, a black satin jacket, and boots. Two
1
He denied involvement when a police officer claimed (wrongly) that the
police had found his fingerprints in Jane’s bedroom, and he even denied
involvement when the sentencing judge told him that acceptance of re­
sponsibility would garner him leniency.

Cite as: 558 U. S. 120 (2010) 123
Per Curiam
witnesses saw a man dressed in dark jeans, a cowboy hat,
and a black satin jacket stumbling in the road between the
two trailers shortly after 1 a.m.
The bedroom where the rape occurred was dark, and Jane
was unable to conclusively identify her assailant. When
asked whom he reminded her of, she mentioned both Troy
and his brother Trent. Several days after the rape, she
identified a man she saw on television (Troy) as her assailant
but then stated that the man who had sent flowers attacked
her. It was Trent and Raquel who had sent her flowers, not
Troy. She was unable to identify Troy as her assailant out
of a photo lineup, and she could not identify her assailant at
trial. The night of the rape, however, she said her attacker
was wearing dark jeans, a black jacket with a zipper, boots,
and a watch. She also vividly remembered that the man
“stunk real, real bad” of “cologne, or some beer or puke or
something.” Id., at 172–173.
Some evidence besides Jane’s inconsistent identification
did not inculpate Troy. Jane testified that she thought she
had bitten her assailant, but Troy did not have any bite
marks on his hands when examined by a police officer ap­
proximately four hours after the attack. Jane stated that
her assailant’s jacket had a zipper (Troy’s did not) and that
he wore a watch (Troy claimed he did not). Additionally,
there was conflicting testimony as to when Troy left the Pea­
cock and when Pam received Jane’s call reporting the rape.
The witnesses who saw a man stumbling between the two
trailers reported a bright green logo on the back of the
jacket, but Troy’s jacket had a yellow and orange logo. Fi­
nally, because Jane thought she had left a night light on when
she went to bed, the police suspected the assailant had
turned off the light. The only usable fingerprint taken from
the light did not match Troy’s, and the police did not find
Troy’s fingerprints in the trailer.
Other physical evidence, however, pointed to Troy. The
police recovered semen from Jane’s underwear and from the

124 McDANIEL v. BROWN
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rape kit. The State’s expert, Renee Romero, tested the for­
mer and determined that the DNA matched Troy’s and that
the probability another person from the general population
would share the same DNA (the “random match probabil­
ity”) was only 1 in 3 million. Troy’s counsel did not call his
own DNA expert at trial, although he consulted with an ex­
pert in advance who found no problems with Romero’s test
procedures. At some time before sentencing, Troy’s family
had additional DNA testing done. That testing showed
semen taken from the rape kit matched Troy’s DNA, with a
random match probability of 1 in 10,000.
The jury found Troy guilty of sexual assault and sentenced
him to life with the possibility of parole after 10 years.
2
On
direct appeal, the Nevada Supreme Court considered Troy’s
claim that his conviction was not supported by sufficient evi­
dence, analyzing “whether the jury, acting reasonably, could
have been convinced of [Troy’s] guilt beyond a reasonable
doubt.” Brown v. Nevada, 113 Nev. 275, 285, 934 P. 2d 235,
241 (1997) (per curiam). The court rejected the claim, sum­
marizing the evidence of guilt as follows:
“Testimony indicated that Troy left the bar around 12:15
a.m., that Troy lived relatively close to the bar, and that
Troy lived very close to Jane Doe. Troy had enough
2
Under Nevada law at the time of the trial, the jury, rather than the
judge, imposed the sentence for a sexual assault crime if it found the
assault resulted in substantial bodily harm. Nev. Rev. Stat. Ann.
§ 200.366(3) (Michie 1992). For an assault resulting in substantial bodily
harm, the jury had the option of sentencing Troy to life without the pos­
sibility of parole or to life with eligibility for parole after 10 years.
§ 200.366(2)(a). The jury elected the more lenient sentence. The judge
sentenced Troy to life with the possibility of parole after 10 years on a
second count of sexual assault, to run consecutively. The Nevada Su­
preme Court reversed Troy’s conviction for one count of child abuse on
double jeopardy grounds, and ordered resentencing on the second sexual
assault count. Brown v. Nevada, 113 Nev. 275, 934 P. 2d 235 (1997) (per
curiam). On resentencing, the judge imposed the same sentence as
before.

Cite as: 558 U. S. 120 (2010) 125
Per Curiam
time to get from the bar to Jane Doe’s house and to
assault Jane Doe before she made the telephone call to
her mother at approximately 1:00 a.m. While Jane Doe
could not identify her assailant, her description of his
clothing was similar to what Troy was wearing; she also
said that her assailant smelled like beer or vomit and
testimony indicated that Troy had been drinking beer
and had vomited several times that night. Further­
more, testimony indicated that Troy got home at approx­
imately 1:30 a.m., which gave him enough time to assault
Jane Doe. Additionally, [witnesses] testified that they
saw someone resembling Troy in a black jacket and
black hat stumbling in the road near Jane Doe’s house
at 1:05 a.m. Troy also washed his pants and shirt when
he got home, arguably to remove the blood evidence
from his clothes. Finally, the DNA evidence indicated
that semen collected from Jane Doe’s underwear
matched Troy’s and that only 1 in 3,000,000 other people
had matching DNA (the second DNA test indicated that
1 in 10,000 people had matching DNA).” Ibid., 934
P. 2d, at 241–242.
Respondent also argued on appeal that the trial court erred
in failing to conduct a pretrial hearing to determine whether
the DNA evidence was reliable. The court found respond­
ent had not raised this issue in the trial court and concluded
there was no plain error in the trial court’s failure to conduct
a hearing. Id., at 284, 934 P. 2d, at 241.
In 2001, respondent sought state postconviction relief,
claiming, inter alia, that his trial counsel was constitution­
ally ineffective for failing to object to the admission of the
DNA evidence. He argued that there were a number of
foundational problems with the DNA evidence, and that if
trial counsel had objected, the evidence would have been ex­
cluded or at least its importance diminished. He noted that
because trial counsel “totally failed to challenge the DNA
evidence in the case,” counsel “failed to preserve valid issues

126 McDANIEL v. BROWN
Per Curiam
for appeal.” App. 1101. The state postconviction court de­
nied relief, id., at 1489–1499, and the Nevada Supreme Court
affirmed, judgt. order reported at 119 Nev. 797, 130 P. 3d
673 (2003).
Respondent thereafter filed this federal habeas petition,
claiming there was insufficient evidence to convict him on the
sexual assault charges and that the Nevada Supreme Court’s
rejection of his claim was both contrary to, and an unreason­
able application of, Jackson. He did not bring a typical
Jackson claim, however. Rather than argue that the total­
ity of the evidence admitted against him at trial was consti­
tutionally insufficient, he argued that some of the evidence
should be excluded from the Jackson analysis. In particu­
lar, he argued that Romero’s testimony related to the DNA
evidence was inaccurate and unreliable in two primary re­
spects: Romero mischaracterized the random match proba­
bility and misstated the probability of a DNA match among
his brothers. Absent that testimony, he contended, there
was insufficient evidence to convict him.
In support of his claim regarding the accuracy of Romero’s
testimony, respondent submitted a report prepared by Lau­
rence Mueller, a professor in ecology and evolutionary biol­
ogy (Mueller Report). The District Court supplemented
the record with the Mueller Report, even though it was not
presented to any state court, because “the thesis of the re­
port was argued during post-conviction.” Brown v. Far-
well, No. 3:03–cv–00712–PMP–VPC, 2006 WL 6181129, *5,
n. 2 (D Nev., Dec. 14, 2006).
Relying upon the Mueller Report, the District Court set
aside the “unreliable DNA testimony” and held that without
the DNA evidence “a reasonable doubt would exist in the
mind of any rational trier of fact.” Id., at *7. The court
granted respondent habeas relief on his Jackson claim.
3
3
The District Court also granted habeas relief on respondent’s claim
that he was denied effective assistance of counsel with respect to his attor­
ney’s handling of the DNA evidence and failure to adequately investigate

Cite as: 558 U. S. 120 (2010) 127
Per Curiam
The Ninth Circuit affirmed. 525 F. 3d 787. The court
held the Nevada Supreme Court had unreasonably applied
Jackson. 525 F. 3d, at 798; see 28 U. S. C. § 2254(d)(1). The
Court of Appeals first reasoned “the admission of Romero’s
unreliable and misleading testimony violated Troy’s due
process rights,” so the District Court was correct to exclude
it. 525 F. 3d, at 797. It then “weighed the sufficiency of
the remaining evidence,” including the District Court’s “cat­
alogu[e] [of] the numerous inconsistencies that would raise a
reasonable doubt as to Troy’s guilt in the mind of any ra­
tional juror.” Ibid. In light of the “stark” conflicts in the
evidence and the State’s concession that there was insuffi­
cient evidence absent the DNA evidence, the court held it
was objectively unreasonable for the Nevada Supreme Court
to reject respondent’s insufficiency-of-the-evidence claim.
Id., at 798.
We granted certiorari, 555 U. S. 1152 (2009), to consider
two questions: the proper standard of review for a Jackson
claim on federal habeas, and whether such a claim may rely
upon evidence outside the trial record that goes to the relia­
bility of trial evidence.
II
Respondent’s claim has now crystallized into a claim about
the import of two specific inaccuracies in the testimony re­
lated to the DNA evidence, as indicated by the Mueller Re­
port. The Mueller Report does not challenge Romero’s
qualifications as an expert or the validity of any of the tests
that she performed. Mueller instead contends that Romero
committed the so-called “prosecutor’s fallacy” and that she
underestimated the probability of a DNA match between re­
spondent and one of his brothers.
the victim’s stepfather as an alternative suspect. Brown v. Farwell,
No. 3:03–cv–00712–PMP–VPC, 2006 WL 6181129, *9–*10 (D Nev., Dec. 14,
2006). The Court of Appeals did not consider those claims on appeal, and
they are not now before us.

128 McDANIEL v. BROWN
Per Curiam
The prosecutor’s fallacy is the assumption that the random
match probability is the same as the probability that the de­
fendant was not the source of the DNA sample. See Nat.
Research Council, Comm. on DNA Forensic Science, The
Evaluation of Forensic DNA Evidence 133 (1996) (“Let P
equal the probability of a match, given the evidence geno­
type. The fallacy is to say that P is also the probability that
the DNA at the crime scene came from someone other than
the defendant”). In other words, if a juror is told the proba­
bility a member of the general population would share the
same DNA is 1 in 10,000 (random match probability), and he
takes that to mean there is onlya1in 10,000 chance that
someone other than the defendant is the source of the DNA
found at the crime scene (source probability), then he has
succumbed to the prosecutor’s fallacy. It is further error to
equate source probability with probability of guilt, unless
there is no explanation other than guilt for a person to be
the source of crime-scene DNA. This faulty reasoning may
result in an erroneous statement that, based on a random
match probability of 1 in 10,000, there is a 0.01% chance the
defendant is innocent or a 99.99% chance the defendant is
guilty.
The Mueller Report does not dispute Romero’s opinion
that only 1 in 3 million people would have the same DNA
profile as the rapist. Mueller correctly points out, however,
that some of Romero’s testimony—as well as the prosecutor’s
argument—suggested that the evidence also established that
there was only a 0.000033% chance that respondent was inno­
cent. The State concedes as much. Brief for Petitioners
54. For example, the prosecutor argued at closing the jury
could be “99.999967 percent sure” in this case. App. 730.
And when the prosecutor asked Romero, in a classic example
of erroneously equating source probability with random
match probability, whether “it [would] be fair to say... that
the chances that the DNA found in the panties—the semen

Cite as: 558 U. S. 120 (2010) 129
Per Curiam
in the panties—and the blood sample, the likelihood that it
is not Troy Brown would be .000033,” id., at 460, Romero
ultimately agreed that it was “not inaccurate” to state it that
way, id., at 461–462.
Looking at Romero’s testimony as a whole, though, she
also indicated that she was merely accepting the mathemati­
cal equivalence between 1 in 3 million and the percentage
figure. At the end of the colloquy about percentages, she
answered affirmatively the court’s question whether the per­
centage was “the same math just expressed differently.”
Id., at 462. She pointed out that the probability a brother
would match was greater than the random match probability,
which also indicated to the jury that the random match prob­
ability is not the same as the likelihood that someone other
than Troy was the source of the DNA.
The Mueller Report identifies a second error in Romero’s
testimony: her estimate of the probability that one or more
of Troy’s brothers’ DNA would match. Romero testified
there was a 1 in 6,500 (or 0.02%) probability that one brother
would share the same DNA with another. Id., at 469, 472.
When asked whether “that change[s] at all with two broth­
ers,” she answered no. Id., at 472. According to Mueller,
Romero’s analysis was misleading in two respects. First,
she used an assumption regarding the parents under which
siblings have the lowest chance of matching that is biologi­
cally possible, but even under this stingy assumption she re­
ported the chance of two brothers matching (1 in 6,500) as
much lower than it is (1 in 1,024 under her assumption).
Second, using the assumptions Mueller finds more appro­
priate, the probability of a single sibling matching respond­
ent is 1 in 263, the probability that among two brothers one
or more would match is 1 in 132, and among four brothers it
is1in66. Id., at 1583.
In sum, the two inaccuracies upon which this case turns
are testimony equating random match probability with
source probability, and an underestimate of the likelihood

130 McDANIEL v. BROWN
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that one of Troy’s brothers would also match the DNA left
at the scene.
III
Although we granted certiorari to review respondent’s
Jackson claim, the parties now agree that the Court of Ap­
peals’ resolution of his claim under Jackson was in error.
See Brief for Respondent 2–3; Reply Brief for Petitioners 1.
Indeed, respondent argues the Court of Appeals did not de­
cide his case under Jackson at all, but instead resolved the
question whether admission of Romero’s inaccurate testi­
mony rendered his trial fundamentally unfair and then ap­
plied Jackson to determine whether that error was harmless.
Although both petitioners and respondent are now aligned
on the same side of the questions presented for our review,
the case is not moot because “the parties continue to seek
different relief ” from this Court. Pacific Bell Telephone Co.
v. linkLine Communications, Inc., 555 U. S. 438, 446 (2009).
Respondent primarily argues that we affirm on his proposed
alternative ground or remand to the Ninth Circuit for analy­
sis of his due process claim under the standard for harmless
error of Brecht v. Abrahamson, 507 U. S. 619 (1993). The
State, on the other hand, asks us to reverse. Respondent
and one amicus have also suggested that we dismiss the case
as improvidently granted, Brief for National Association of
Criminal Defense Lawyers as Amicus Curiae 27–28, but
we think prudential concerns favor our review of the Court
of Appeals’ application of Jackson. Cf. Pacific Bell, supra,
at 447.
Respondent no longer argues it was proper for the District
Court to admit the Mueller Report for the purpose of evalu­
ating his Jackson claim, Brief for Respondent 35, and con­
cedes the “purpose of a Jackson analysis is to determine
whether the jury acted in a rational manner in returning a
guilty verdict based on the evidence before it, not whether
improper evidence violated due process,” id., at 2. There
has been no suggestion that the evidence adduced at trial

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Per Curiam
was insufficient to convict unless some of it was excluded.
Respondent’s concession thus disposes of his Jackson claim.
The concession is also clearly correct. An “appellate court’s
reversal for insufficiency of the evidence is in effect a deter­
mination that the government’s case against the defendant
was so lacking that the trial court should have entered a
judgment of acquittal.” Lockhart v. Nelson, 488 U. S. 33, 39
(1988). Because reversal for insufficiency of the evidence is
equivalent to a judgment of acquittal, such a reversal bars a
retrial. See Burks v. United States, 437 U. S. 1, 18 (1978).
To “make the analogy complete” between a reversal for in­
sufficiency of the evidence and the trial court’s granting
a judgment of acquittal, Lockhart, 488 U. S., at 42, “a
reviewing court must consider all of the evidence admitted
by the trial court,” regardless of whether that evidence was
admitted erroneously, id., at 41.
Respondent therefore correctly concedes that a reviewing
court must consider all of the evidence admitted at trial
when considering a Jackson claim. Even if we set that con­
cession aside, however, and assume that the Court of Ap­
peals could have considered the Mueller Report in the con­
text of a Jackson claim, the court made an egregious error
in concluding the Nevada Supreme Court’s rejection of re­
spondent’s insufficiency-of-the-evidence claim “involved an
unreasonable application of . . . clearly established Federal
law,” 28 U. S. C. § 2254(d)(1).
4
4
The Court of Appeals also clearly erred in concluding the Nevada Su­
preme Court’s decision was “contrary to” Jackson. The Court of Appeals
held the Nevada Supreme Court’s decision was “contrary to” Jackson be­
cause the Nevada court stated a standard that turns on a “reasonable”
jury, not a “rational” one, and that assesses whether the jury could have
been convinced of a defendant’s guilt, rather than whether it could have
been convinced of each element of the crime. Brown v. Farwell, 525 F. 3d
787, 794–795 (CA9 2008). It is of little moment that the Nevada Supreme
Court analyzed whether a “reasonable” jury could be convinced of guilt
beyond a reasonable doubt, rather than asking whether a “rational” one
could be convinced of each element of guilt; a reasonable jury could hardly

132 McDANIEL v. BROWN
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Even if the Court of Appeals could have considered it, the
Mueller Report provided no warrant for entirely excluding
the DNA evidence or Romero’s testimony from that court’s
consideration. The Report did not contest that the DNA
evidence matched Troy. That DNA evidence remains pow­
erful inculpatory evidence even though the State concedes
Romero overstated its probative value by failing to dispel
the prosecutor’s fallacy. And Mueller’s claim that Romero
used faulty assumptions and underestimated the probability
of a DNA match between brothers indicates that two experts
do not agree with one another, not that Romero’s estimates
were unreliable.
5
Mueller’s opinion that “the chance that among four broth­
ers one or more would match is 1 in 66,” App. 1583, is sub­
stantially different from Romero’s estimate of a 1 in 6,500
chance that one brother would match. But even if Romero’s
estimate is wrong, our confidence in the jury verdict is not
undermined. First, the estimate that is more pertinent to
this case is 1 in 132—the probability of a match among two
brothers—because two of Troy’s four brothers lived in Utah.
Second, although Jane Doe mentioned Trent as her assailant,
and Travis lived in a nearby trailer, the evidence indicates
that both (unlike Troy) were sober and went to bed early on
the night of the crime. Even under Mueller’s odds, a ra­
tional jury could consider the DNA evidence to be powerful
evidence of guilt.
Furthermore, the Court of Appeals’ discussion of the non-
DNA evidence departed from the deferential review that
Jackson and § 2254(d)(1) demand. A federal habeas court
be convinced of guilt unless it found each element satisfied beyond a rea­
sonable doubt.
5
The State has called our attention to cases in which courts have criti­
cized opinions rendered by Professor Mueller in the past. See Brief for
Petitioners 53–54. We need not pass on the relative credibility of the
two experts because even assuming that Mueller’s estimate is correct,
respondent’s claim fails.

Cite as: 558 U. S. 120 (2010) 133
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can only set aside a state-court decision as “an unreason­
able application of . . . clearly established Federal law,”
§ 2254(d)(1), if the state court’s application of that law is “ob­
jectively unreasonable,” Williams v. Taylor, 529 U. S. 362,
409 (2000). And Jackson requires a reviewing court to re­
view the evidence “in the light most favorable to the prose­
cution.” 443 U. S., at 319. Expressed more fully, this
means a reviewing court “faced with a record of historical
facts that supports conflicting inferences must presume—
even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.” Id., at 326;
see also Schlup v. Delo, 513 U. S. 298, 330 (1995) (“The Jack­
son standard . . . looks to whether there is sufficient evidence
which, if credited, could support the conviction”). The
Court of Appeals acknowledged that it must review the evi­
dence in the light most favorable to the prosecution, but the
court’s recitation of inconsistencies in the testimony shows it
failed to do that.
For example, the court highlights conflicting testimony re­
garding when Troy left the Peacock. 525 F. 3d, at 797. It
is true that if a juror were to accept the testimony of one
bartender that Troy left the bar at 1:30 a.m., then Troy
would have left the bar after the attack occurred. Yet the
jury could have credited a different bartender’s testimony
that Troy left the Peacock at around 12:15 a.m. Resolving
the conflict in favor of the prosecution, the jury must have
found that Troy left the bar in time to be the assailant. It
is undisputed that Troy washed his clothes immediately upon
returning home. The court notes this is “plausibly consist­
ent with him being the assailant” but also that he pro­
vided an alternative reason for washing his clothes. Ibid.
Viewed in the light most favorable to the prosecution, the
evidence supports an inference that Troy washed the clothes
immediately to clean blood from them.

134 McDANIEL v. BROWN
Per Curiam
To be sure, the court’s Jackson analysis relied substan­
tially upon a concession made by the State in state postcon­
viction proceedings that “absent the DNA findings, there
was insufficient evidence to convict [Troy] of the crime.”
App. 1180. But that concession posited a situation in which
there was no DNA evidence at all,
6
not a situation in which
some pieces of testimony regarding the DNA evidence were
called into question. In sum, the Court of Appeals’ analysis
failed to preserve “the factfinder’s role as weigher of the
evidence” by reviewing “all of the evidence . . . in the light
most favorable to the prosecution,” Jackson, supra, at 319,
and it further erred in finding that the Nevada Supreme
Court’s resolution of the Jackson claim was objectively
unreasonable.
IV
Resolution of the Jackson claim does not end our consider­
ation of this case because respondent asks us to affirm on an
alternative ground. He contends the two errors “in describ­
ing the statistical meaning ” of the DNA evidence rendered
his trial fundamentally unfair and denied him due process of
law. Brief for Respondent 4. Because the Ninth Circuit
held that “the admission of Romero’s unreliable and mislead­
ing testimony violated [respondent’s] due process rights,”
525 F. 3d, at 797, and in respondent’s view merely applied
Jackson (erroneously) to determine whether that error was
harmless, he asks us to affirm the judgment below on the
basis of what he calls his “DNA due process” claim, Brief
for Respondent 35.
As respondent acknowledges, in order to prevail on this
claim, he would have to show that the state court’s adjudica­
6
The concession was made in the context of proceedings in which re­
spondent argued that competent counsel would have objected to the
admissibility of the DNA evidence on a number of grounds—including
Romero’s qualifications, chain-of-custody problems, and failure to follow
the proper testing protocol—and might have successfully excluded the
DNA evidence altogether. See App. 1099–1100.

Cite as: 558 U. S. 120 (2010) 135
Per Curiam
tion of the claim was “contrary to, or involved an unreason­
able application of, clearly established Federal law.” 28
U. S. C. § 2254(d)(1). The clearly established law he points
us to is Manson v. Brathwaite, 432 U. S. 98, 114 (1977), in
which we held that when the police have used a suggestive
eyewitness identification procedure, “reliability is the linch­
pin in determining ” whether an eyewitness identification
may be admissible, with reliability determined according to
factors set out in Neil v. Biggers, 409 U. S. 188 (1972). Re­
spondent argues that the admission of the inaccurate DNA
testimony violated Brathwaite because the testimony was
“identification testimony,” 432 U. S., at 114, was “unnecessar­
ily suggestive,” id., at 113, and was unreliable.
Respondent has forfeited this claim, which he makes for
the very first time in his brief on the merits in this Court.
Respondent did not present his new “DNA due process”
claim in his federal habeas petition, but instead consistently
argued that Romero’s testimony should be excluded from the
Jackson analysis simply because it was “unreliable” and that
the due process violation occurred because the remaining ev­
idence was insufficient to convict. See App. to Pet. for Cert.
157a (“[Respondent] asserts . . . that the DNA evidence was
unreliable and should not have been admitted at his trial. If
so, then, . . . the state presented insufficient evidence at trial
to prove [respondent] guilty”). In the Ninth Circuit, too, re­
spondent presented only his Jackson claim,
7
and it is, at
the least, unclear whether respondent presented his newly
7
The Court of Appeals did reason that Romero’s testimony must be
excluded from the Jackson analysis on due process grounds. 525 F. 3d,
at 797. But that decision was inextricably intertwined with the claim
respondent did make in his federal habeas petition under Jackson. It is
clear the Ninth Circuit was never asked to consider—and did not pass
upon—the question whether the Nevada Supreme Court entered a deci­
sion on direct appeal that was contrary to or an unreasonable application
of Manson v. Brathwaite, 432 U. S. 98 (1977), or any other clearly estab­
lished law regarding due process other than Jackson.

136 McDANIEL v. BROWN
Per Curiam
minted due process claim in the state courts.
8
Recognizing
that his Jackson claim cannot prevail, respondent tries to
rewrite his federal habeas petition. His attempt comes too
late, however, and he cannot now start over.
***
We have stated before that “DNA testing can provide
powerful new evidence unlike anything known before.”
District Attorney’s Office for Third Judicial Dist. v. Os­
borne, 557 U. S. 52, 62 (2009). Given the persuasiveness
of such evidence in the eyes of the jury, it is important that
it be presented in a fair and reliable manner. The State ac­
knowledges that Romero committed the prosecutor’s fallacy,
Brief for Petitioners 54, and the Mueller Report suggests
that Romero’s testimony may have been inaccurate regard­
ing the likelihood of a match with one of respondent’s broth­
ers. Regardless, ample DNA and non-DNA evidence in the
record adduced at trial supported the jury’s guilty verdict
under Jackson, and we reject respondent’s last minute at­
tempt to recast his claim under Brathwaite. The Court of
Appeals did not consider, however, the ineffective-assistance
claims on which the District Court also granted respondent
habeas relief. Accordingly, the judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
8
The State contends the claim is either not exhausted or procedurally
defaulted. The State has objected from the beginning that respondent
did not raise a due process claim regarding the reliability of the DNA
evidence in state court. See App. to Pet. for Cert. 182a–183a. Respond­
ent consistently answered the State’s exhaustion objection by arguing he
presented his Jackson claim in the Nevada Supreme Court. See App.
1521–1526. The Ninth Circuit held respondent exhausted his insuffi­
ciency claim. 525 F. 3d, at 793. The court had no occasion to consider
whether respondent exhausted any due process claim other than his Jack­
son claim.

Cite as: 558 U. S. 120 (2010) 137
Thomas, J., concurring
Justice Thomas, with whom Justice Scalia joins,
concurring.
I join the per curiam because it correctly holds that the
Ninth Circuit erred in departing from Jackson’s mandate
that a federal habeas court confine its sufficiency-of-the­
evidence analysis to “the evidence adduced at trial” and, spe­
cifically, to “ ‘all of the evidence admitted by the trial court.’ ”
Ante, at 130, 131 (quoting Lockhart v. Nelson, 488 U. S. 33,
41 (1988)); see Jackson v. Virginia, 443 U. S. 307 (1979).
I write separately because I disagree with the Court’s deci­
sion to complicate its analysis with an extensive discussion of
the Mueller Report. See ante, at 127–132. Defense counsel
commissioned that report 11 years after respondent’s trial.
See ante, at 121. Accordingly, the report’s attacks on the
State’s DNA testimony were not part of the trial evidence
and have no place in the Jackson inquiry. See Jackson,
supra, at 318; Lockhart, supra, at 40–42. That is all we
need or should say about the report in deciding this case.
The Court’s opinion demonstrates as much. The Court’s
lengthy discussion of the Mueller Report, see ante, at 127–
130, is merely a predicate to asserting that “even if ” the
Court of Appeals could have considered the report in its
Jackson analysis, the report “provided no warrant for en­
tirely excluding the DNA evidence or Romero’s testimony
from that court’s consideration” because the report “did not
contest that the DNA evidence matched Troy” or otherwise
show that the State’s DNA estimates were “unreliable,”
ante, at 132. Based on these observations, the Court con­
cludes that the Mueller Report did not undermine the State’s
DNA tests as “powerful inculpatory evidence.” Ibid. That
is true, but even if the report had completely undermined
the DNA evidence—which the Ninth Circuit may have mis­
takenly believed it did, see Brown v. Farwell, 525 F. 3d 787,
795–796 (2008)—the panel still would have erred in consider­
ing the report to resolve respondent’s Jackson claim. The
reason, as the Court reaffirms, is that Jackson claims must

138 McDANIEL v. BROWN
Thomas, J., concurring
be decided solely on the evidence adduced at trial. See ante,
at 131. Accordingly, the Court need not correct any errone­
ous impressions the Ninth Circuit may have had concerning
the report’s impact on the State’s DNA evidence to resolve
respondent’s Jackson claim.* Because that is the only claim
properly before us, I do not join the Court’s dicta about how
the Mueller Report’s findings could affect a constitutional
analysis to which we have long held such post-trial evidence
does not apply. See Jackson, supra, at 318.
*Correcting the Ninth Circuit’s apparent misconception of the effects of
the Mueller Report is the only plausible reason for the Court’s decision to
explain that the report would not have undermined the State’s DNA re­
sults “even if ” the Court of Appeals could have considered it in resolving
respondent’s Jackson claim. Ante, at 131–132. That discussion cannot
properly be read to suggest either that there are circumstances in which
post-trial evidence would “warrant” excluding DNA trial evidence from a
Jackson analysis, ante, at 132, or that courts applying Jackson may con­
sider post-trial evidence for any other purpose. Both points are squarely
foreclosed by the precedents on which the Court relies in reversing the
Ninth Circuit’s judgment. See ante, at 121 (citing Jackson v. Virginia,
443 U. S. 307, 324 (1979)); ante, at 131 (citing Lockhart v. Nelson, 488 U. S.
33, 39 (1988)), respectively.